Federal Agencies Can Walk (Fight Fentanyl) and Chew Gum (Respect the Constitution) at the Same Time

​For years, the excuse the intelligence community has trotted out to derail surveillance reform was the need to prevent a re-building of “the wall” – shorthand for the refusal of the FBI and CIA to share information between each other, and within their own organizations – that could have stopped the 9/11 terrorist attacks.
 
This was more than a little disingenuous. There was no “wall.” There was no law or formal policy that kept these agencies from sharing appropriate alarm about flight students who wanted to learn to pilot large passenger jets, while skipping the part about landing. The 9/11 Commission appropriately put the blame on sluggish, bureaucratic behavior that allowed that awful day to happen.
 
The 9/11 excuse to avoid any and all reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA) doesn’t have the same punch it used to have. So the apologists for the intelligence community are changing tack. They now argue that Congress must pass Section 702 as it is or else the nation will drown in a sea of fentanyl. A recent article in The Charlotte News & Observer demonstrates how the apologists for the status quo are now using fentanyl to lobby North Carolina’s two senators, Thom Tillis and Ted Budd, to walk away from changes to Section 702. Both senators have bravely stood up for their constituents by speaking out for the need for surveillance reform.
 
This is part of a larger effort by the McClatchy media group to run stories, from The Miami Herald to The Kansas City Star. That nationwide series links senators skeptical about Section 702 to the assertion that a Section 702 probable cause warrant requirement would degrade law enforcement’s ability to stop fentanyl distribution.
 
No one disagrees that the smuggling of this deadly drug into the United States is a national crisis. It is estimated that 150 Americans die every day from synthetic opioid poisoning. Fentanyl, which can be 50 times more potent than heroin, is particularly dangerous. PPSA and other civil libertarian groups agree that fighting fentanyl smuggling and marketing is a major national struggle that law enforcement should be fully engaged in countering.
 
But these efforts by the intelligence community smack of fear-mongering. We are adamant in our conviction that we can fight fentanyl without throwing out the Fourth Amendment to the U.S. Constitution, which forbids unreasonable searches and seizures of our personal information. Section 702 enables surveillance of foreign nationals for national security purposes. Because all communications are global, and many Americans have conversations with foreigners, millions of Americans have their data caught up in 702’s dragnet.
 
And, as we have seen, the FBI and other agencies have warrantlessly accessed the personal information of Americans millions of times in recent years – including the personal data of political leaders, that of a U.S. senator, a House Member, a state senator, and a judge.
 
Here’s a tip for the FBI: no Member of Congress is engaged in the smuggling and distribution of fentanyl. What excuse, then, does the FBI have for intruding into the personal communications and data of leading politicians? Perhaps Sens. Tillis and Budd might want to ask the intelligence community questions about that.
 
The bottom line is that the FBI and other agencies should be able to prosecute fentanyl smugglers and sellers and respect the U.S. Constitution at the same time.
 
“The reform debate is about this program’s broad intrusion on Americans’ privacy,” ACLU’s Patrick Toomey told The News & Observer. “If the purpose of Section 702 is to target foreigners for intelligence purposes, as officials often say, then they should stop stonewalling robust protections for Americans.”